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Cave v. Thurston

United States District Court, E.D. Arkansas, Western Division

September 11, 2019

DONNA CAVE, et al., PLAINTIFFS
v.
JOHN THURSTON, Arkansas Secretary of State, in his official capacity DEFENDANT EUGENE LEVY, et al., CONSOLIDATED PLAINTIFFS THE SATANIC TEMPLE, et al., INTERVENORS

          ORDER

          Kristine G. Baker United States District Judge.

         Before the Court is a motion to quash and for protective order filed by non-party witness Senator Jason Rapert (Dkt. No. 74). Plaintiffs Anne Orsi, Eugene Levy, Gale Stewart, Teresa Grider, the Arkansas Society of Freethinkers, American Humanist Association, and the Freedom from Religion Foundation (the “Orsi Plaintiffs”) filed a response in opposition to the motion (Dkt. No. 75). The Satanic Temple, Lucien Greaves, and Erika Robbins (the “Satanic Temple Intervenors”) have also filed a response in opposition to the motion (Dkt. No. 76).

         Arkansas State Senator Rapert informs the Court that his deposition has been subpoenaed for Thursday, September 12, 2019, at 9:30 a.m. (Dkt. No. 74, at 1). On August 2, 2019, plaintiffs Donna Cave, Judith Lansky, Pat Piazza, and Susan Russell (the “Cave Plaintiffs”) served a subpoena for his deposition but did not request video or documents with the deposition (Dkt. No. 74-1). On August 14, 2019, the Orsi Plaintiffs caused to issue a deposition subpoena and subpoena duces tecum commanding the videotaped testimony of Arkansas State Senator Rapert (Dkt. No. 74-2). Arkansas State Senator Rapert represents that he was served with the subpoena on August 20, 2019 (Dkt. No. 74, at 1).

         He moves to “(1) quash the subpoena commanding Senator Rapert's attendance at a videotaped deposition noticed for 9:30 a.m. September 12, 2019, and (2) enter a protective order limiting the possession and use of any subsequent videotaped deposition to his personal attorneys and counsel of record in this matter only.” (Id.).

         The Court attempted to convene a telephone hearing among counsel on September 11, 2019, with respect to this matter to discuss the status of the matter with all counsel (See Court's Exhibit No. 1, at 3). Although lawyers for the Cave Plaintiffs, the Orsi Plaintiffs, the Satanic Temple Intervenors, and Arkansas State Senator Jason Rapert agreed to make themselves available for such a hearing (Id., at 4-5, 7-8, 13), counsel for Mr. Thurston stated that there were prior engagements during that time and “request[ed] that the Court not hold a conference, ” on that date (Id., at 10). Counsel for Mr. Thurston represented that they would “work to reshuffle . . . prior commitments” if ordered to do so by the Court (Id.).

         The Court has reviewed controlling and persuasive authorities, including but not limited to Jones v. William Jefferson Clinton, et al., Case No. LR-C-94-290 (Dkt. No. 166), and United States v. McDougal, 940 F.Supp. 224 (E.D. Ark.), aff'd 103 F.3d 651 (8th Cir. 1996). For good cause shown, the Court orders as follows:

         (1) Arkansas State Senator Rapert's deposition will proceed as subpoenaed by the Cave Plaintiffs and Orsi Plaintiffs;

         (2) That deposition may be videotaped in accordance with the Orsi Plaintiffs' subpoena;

         (3) Immediately upon the conclusion of Arkansas State Senator Rapert's deposition the original video recording shall be labeled, dated, and initialed by the individual responsible for operating the recording equipment and handed to counsel for the Orsi Plaintiffs. Counsel for the Orsi Plaintiffs shall be responsible for maintaining the confidentiality of the video recording of Arkansas State Senator Rapert's deposition pursuant to this Order.

         (4) No copies shall be made of the video recording of Arkansas State Senator Rapert's deposition except as provided by Order of the Court after reasonable notice to all parties, including counsel for Arkansas State Senator Rapert. This provision includes but is not limited to no copies of the video recording being made or distributed to any other counsel, parties, or third-parties in this litigation except as provided by Order of the Court.

         (5) This Order grants a temporary protective order, consistent with its terms. The Court has under advisement Arkansas State Senator Rapert's motion (Dkt. No. 74). The disposition of the video recording of Arkansas State Senator Rapert's deposition shall remain subject to further orders of this Court, and this Order is without prejudice to Arkansas State Senator Rapert's right to petition this Court for further protection. The parties ...


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